On 26 June 2016 many American citizens gathered as one mass unit outside the American Supreme Court, patiently waiting for the American Supreme Court’s decision on the lawfulness of same-sex marriage. The day ended in public euphoria by liberals on the left and young millennials as the Supreme Court decided to recognize same-sex marriage at parity with heterosexual couples, and shunning state bans on same-sex marriage. Despite the charged crowd engulfing the Supreme Court building, chanting slogans in support of same-sex marriage while waving the American flag depicting harmony between the American ethos and same-sex marriage, Chief Justice John Robert’s spirit remained resolute as he delivered a powerful dissent. In his illustrious dissent, he remarked, “But this Court is not a legislature. Whether same-sex marriage is a good idea should be of no concern to us. Under the Constitution, judges have the power to say what the law is, not to declare what the law should be”. He went on to add, “it can be tempting for judges to confuse our own preferences with the requirement of the law”.
A presidential reference was also filed in the Honourable Supreme Court of Pakistan at a time of heightened political and constitutional tension. The then incumbent PTI government was breathing its final moments in power as it brazenly called its dissident members traitors to their own country, while the Pakistan Democratic Movement coalition was gearing up for the challenges of the high office it would soon occupy. It was a time in which the public was seen to be heavily charged by the anti-American narrative constructed by the ousted leader Imran Khan for hatching a conspiracy against his government. His self-projection as a victim of an American-backed conspiracy may to some of his ardent supporters, witlessly seem like a Pakistani rendition of President Mohammed Mossadegh of Iran.
The five member-bench of the Honourable Supreme Court of Pakistan settled this issue decisively in clear terms. A benefit of reading the majority judgment is that it has provided certainty in an area of law, which was beset with assumptions by politicians. The heavy penalty imposed by the Supreme Court may well have made future defections by members of the Parliamentary Party a challenging decision to make. The majority judgment has the benefit of underscoring the significance of the party system.
There is a thin line between interpreting the Constitution and re-writing it, making its interpretation a delicate task which requires critical engagement with traditions found in the precedents developed by superior courts as well as the country’s constitutional design.
Yet, the question to ask is whether the Honourable Court may have stretched the power of its interpretation or not. It appears so. Article 63A was originally inserted to curb the rampant defections and floor-crossing by members of the Parliamentary Party. Article 63A could be invoked only where a member had voted against or abstained from voting against the direction of the Parliamentary Party. Once a member had failed to comply with the direction of the Parliamentary Party, the Party head was vested with the discretion to pass a declaration of defection. If a party head decided to pass a declaration of defection, the Election Commission of Pakistan would then exercise its power to de-seat the defected member. Two critical limbs precede the penalty of being de-seated. First is the failure to comply with the Parliamentary party’s specific direction by the act of voting or abstaining from voting along the party line and second, the exercise of discretion of the party leader to declare the member to have defected. The Constitution provides a degree of flexibility to the party leader to pardon the dereliction of its member, and in that case, the Election Commission cannot de-seat the member.
However, the Honourable Court’s view that the votes cast contrary to the party direction ought not to be counted, adds another punishment that was never envisaged by the Constitution. Article 63A is to be understood as a penalty provision in the Constitution, whose scope in the Constitutional framework is restrictive and narrow. In fact, the Justice Ajmal Mian in the seminal case of Wukala Mahaz Barai Tahafuz-i-Dastoor enunciated a narrow interpretation of Article 63A. According to his interpretation, even instances committed by members, outside the vicinity of Parliament or Provincial Assemblies, regardless of being severely detrimental or even colossal to the political party cannot be brought under the ambit of defection by a member. By adding another punishment preceding a decision of the Election Commission, the Supreme Court has stretched the contours of Article 63A beyond its logical scope. Following the Honourable Court’s opinion, a member will be penalized for voting against the party direction prior to the declaration of defection by the party head which, ordinarily marks the initiation of legal proceedings against him. Had the penalty of ‘rejecting the votes of the defectors’ been an offence that the Constitution envisioned, it would have provided so in Article 63A. The legislature could well have done so when the defection clause was twice amended; first in 2002 through Legal Framework Order, 2002, and most recently by the Eighteenth Amendment in 2010.
There is a thin line between interpreting the Constitution and re-writing it, making its interpretation a delicate task which requires critical engagement with traditions found in the precedents developed by superior courts as well as the country’s constitutional design. It is not a mechanical exercise of reading two or more provisions of the Constitution jointly to infer an answer; such an answer more often than not risks stretching the design of the provision out of its context and may create a situation where the subjectivity of oneself may overshadow its intended meaning. It was perhaps the fear of importing a subjective interpretation in Article 63A that the minority judges unwaveringly dissented and held that the defection clause is a complete code in itself and any further interpretation would amount to re-writing the Constitution.